Daily Bread Bakers Pvt. Ltd. vs Mr. Jagjit Singh Bawa
1998 Latest Caselaw 142 Del

ORDER

Manmohan Sarin, J.

1. This petition has been filed by the petitioner/tenant, assailing orders dated 3.12.1988, passed by the learned Additional Rent Controller under Section 15(1) of the Delhi Rent Control Act, (hereinafter referred to as the 'Act') directing the petitioner to deposit/pay rent @Rs.5,000/- per month with effect from 1.8.1984. Petitioner also assails order dated 5.9.1997, passed by the Additional Rent Controller, by which an order of eviction was passed against the petitioner on the ground under Section 14(1)(a) after the petitioner had failed to deposit the rent as directed under Section 15(1) of the Act and after petitioner's defense had been struck off. Petitioner is also assailing the order dated 2.12.1997 of the Rent Control Tribunal by which petitioner was required to pay/deposit, within one week, the arrears of rent and failing which the stay against the order of eviction would stand vacated. Vide order dated 10.12.1997, on petitioner's failure to deposit rent, stay against the order of eviction was vacated.

2. Learned counsel for the petitioner is assailing all the aforesaid orders as being without jurisdiction. The submission is that after the amendment of the Act in 1988, which came into effect on 1.12.1988, the Rent Controller did not have the jurisdiction to continue with the proceedings wherein the rent of the premises was in excess of Rs.3,500/- per month. It is also contended that the premises being used for manufacturing purposes and no notice for termination of lease/tenancy for manufacturing purposes, as required, had been given. Learned counsel submits that the respondent has already instituted two civil suits for recovery of part of the rent and it is not permissible to peruse the proceedings for eviction under the Act on the ground of non-payment of rent as well as pursue parallel proceedings for recovery of rent in a civil suit.

3. Before dealing with these submissions and the authorities cited by learned counsel for the petitioner, I consider it appropriate to briefly recapitulate the facts leading to the filing of this petition under Article 227 of the Constitution of India:

(i) Respondent/landlord had filed a petition for eviction of the petitioner/tenant on the ground of non-payment of rent under Section 14(1)(a) of the Act. Petitioner, in defense, had taken the plea that the rent of the premises was Rs.3,400/- per month. Petitioner had questioned the rate of rent and also claimed suspension of rent on the alleged failure to supply 300 gallons of water per day, required by the petitioner for his activities. It is not necessary to dilate on the merits of the respective pleas. It would suffice to notice that based on the alleged remittances claimed by the petitioner itself, the learned Additional Rent Controller, prima facie, found the relationship of landlord tenant and the rate of rent being Rs.5,000/- per month. Further, that there was no prima facie case made out for supply of water by respondent or for suspension of rent.

(ii) Vide order dated 3.12.1988, passed under Section 15(1) of the Act, petitioner was directed to pay or deposit the rent at the rate of Rs.5,000/- per month with effect from 1.8.1984. Petitioner challenged the said order, in appeal, before the Rent Control Tribunal as well as before this Court. The appeals of the petitioner were dismissed.

(iii) Petitioner also failed to deposit the arrears of rent, as a consequence of which, his defense was struck of vide order dated 23.2.1991.

(iv) After recording of evidence in the eviction petition, vide order dated 5.9.1997, the order of eviction was passed, holding that the petitioner who had failed to comply with the order under Section 15(1) of the Act and whose defense had been struck of under Section 15(7) of the Act, was not entitled to any protection under Section 14(2) of the Act.

(v) It is against this last order that the petitioner preferred the appeal before the Rent Control Tribunal. The Tribunal, as noted earlier, passed the orders dated 2.12.1997 and 10.12.1997, vacating the stay against eviction.

4. Petitioner has not disputed before me that it has not paid or tendered the arrears of rent with effect from 1.8.1984, which, as of now, total over Rs.8,00,000/-. Learned counsel for the petitioner argues that the impugned orders are without jurisdiction because of the amendment made in Section 3(c) of the Act. The rent of the premises being more than Rs.3,500/- per month, the provisions of the Act ceased to apply with effect from 1.12.1988 and the Additional Rent Controller under the Delhi Rent Control Act had no jurisdiction to proceed further in the matter.

5. This submission of learned counsel for the petitioner is directly in conflict with the pronouncement of the Division Bench of this Court in Nirmaljit Arora Vs. Bharat Steel Tubes Ltd. . The Division Bench in this case considered whether Section 3(c), inserted by the Amendment Act of 1988 in the Act, with effect from 1.12.1988 was prospective or retrospective and whether it would apply to the pending actions and proceedings already instituted. Petitioner in the cited case had let out the premises in question at a monthly rental of Rs.5,000/- and a petition on the ground of bonafide need had been instituted under Section 14(1)(e) of the Act. Upon dismissal of the petitioner, petitioner had filed the revision petition in the High Court. It was in the revision petition, that the respondent/tenant raised the objection that by virtue of Clause (c), added to Section 3, the Act would not apply to premises whose monthly rent exceeded Rs.3,500/-. The tenant contended that the amendment having come into effect on 1.12.1988 and the rent of the premises being Rs.5,000/- per month, the revision petition was not maintainable.

Similar argument has been raised by learned senior counsel for the petitioner in this case, Mr. K.S. Bindra, who contends that the Rent Controller ceased to have jurisdiction after 1.12.1988 since the rent was Rs.5,000/- per month.

After analysing the Scheme of the Act and the judicial pronouncements on prospective and retrospective legislations, the Division Bench in Nirmaljit's case (Supra) observed as under:

"There are no express words in Section 3(c) giving this provision retrospective effect. Clause (c) has been added with effect from 1.12.1988. It will have operation from that date. It would be considered to be law on the statute book on 1.12.1988. By Section 2 of the Amending Act, 1988 after the proviso, clause (c) has been inserted, there is no deeming clause that it shall always be deemed to have been inserted. The absence of the deeming clause also manifests the intention of the legislature that the Legislature did not want to give retrospective effect to the insertion of clause (c) in Section 3. It was easy for the legislature to have stated in Section 2 of the Amending Act and the clause shall always be deemed to have been inserted. Had there been such a language employed in Section 2, Section 3(c) would have been given retroactive operation. Besides, the absence of deeming provision, even in the language of Section 3(c), there is nothing from which it can be said that Section 3(c) would apply from before 1.12.1988 i.e. even to pending cases. This knowledge can be attributed to the legislature that thousands and thousands of matters are pending at various stages under the Rent Act. If the Legislature intended to have such a serious and grave consequence to follow, that all proceedings should terminate under the Rent Act, it would not rest contended by simply making a provision of insertion after the proviso to Cl.(b) of Section 3. It would have categorically provided that the provisions of Sl.3(c) shall apply to all pending actions and proceedings. From the objects of the amending Act as well, it cannot be found that such were the intentions of the legislature so as to give retrospective effect to S.3(c)."

In the final analysis, the Division Bench concluded that Section 3(c) of the Act is only prospective in character and has no retrospective operation and, as such, it would not apply to the pending actions and proceedings. The pending actions and proceedings would continue to be governed by the Act as if Section 3(c) is not on the statute book.

6. In view of the foregoing, there is no merit in the submission of learned counsel for the petitioner regarding the Rent Controller ceasing to have jurisdiction on account of amendment in Section 3(c) of the Act.

7. Let me now notice the decisions relied on by learned senior counsel for the petitioner in support of his contentions:

Reliance was placed by the learned counsel on Sushil Kumar Mehta Vs. Gobind Ram Bohra (dead) through his LRs. to urge that the impugned orders passed so far were without jurisdiction and a nullity and the Apex Court, even where the decree which was a nullity had been executed, exercised its powers under Article 136 to do justice between the parties and allowed the appeal and relieved the party from injustice by providing for restitution.

This case can be of no assistance to the petitioner in view of the conclusion reached that the impugned orders are fully within the competence and jurisdiction of the Rent Controller and other Courts.

8. Learned counsel for the petitioner then relied on Lakshmi Narayan Guin and Others Vs. Niranjan Modak . In the said case, the Court was considering the application of Section 13(1) and (6) of the West Bengal Premises Tenancy Act, 1956. The appellant had filed a suit for possession claiming that the tenant was in arrears of rent and the accommodation was required for demolition and to construct separate houses for their own business. The suit was decreed by the trial court, who found the appellant entitled to possession and recovery of arrears of rent. The First Appeal was dismissed by the Appellate Court. The Second Appeal was allowed by the High Court when it was held that by virtue of the West Bengal Premises Tenancy Act, 1956 being extended to Memari, during the pendency of the First Appeal, the Appellate Court was bound to take into account the change of law and to extend its protection and benefit to the tenant. The Court, relying on the principle that an appeal was a continuation of the suit and the trial court decree having merged in the appellate decree, the protection of Section 13(1) was extended on the interpretation that subject to exceptions, given in the Section, no effective or operative order or decree can be made by the Court in a landlord's suit for possession against a tenant and, therefore, Section 13(1) could be invoked by a tenant during the pendency of an appeal to claim protection. This is based on the principle that a change of law during the pendency of appeal has to be taken into account and will govern the rights of the parties.

This decision cannot be of any assistance to the petitioner since the amendment of the Delhi Rent Control Act is only prospective and the provisions of the old Act continue to apply to the pending proceedings. The amended Act would apply to the proceedings instituted after 1.12.1988.

9. Learned counsel for the petitioner next relied on the decision in Dahiben widow of Ranchhodji Jivanji and others Vs. Vasanji Kevalbhai and others reported as AIR 1995 SC 1215. In the said case the Court considered Section 88(1)(c) of the Bombay Tenancy and Agricultural Lands Act (as amended by Act 33 of 1952). Certain area had been exempted from the application of the Act earlier. By virtue of the amendment, the exemption was deleted. The Court found the amendment to be retrospective in operation. The Bench observed that if a notification, taking away the substantial rights of the tenant can have retrospective effect, no objection can be taken, to a provision taking away substantial rights of landlords, having retrospective effect.

As noticed earlier, the amendment of Section 3(c) of the Act has been found to be prospective and not retrospective. As such, the cited case again is of no avail to the petitioner.

10. Learned counsel for the petitioner also placed reliance on D.C. Bhatia & Ors. Vs. Union of India and Another . In the said decision, the Apex Court had upheld the constitutional validity of the Delhi Rent Control (Amendment) Act, 1988. Learned counsel for the petitioner referred to para 62 of the judgement, which reads as under:

"In the judgement under appeal, it has been held that the provisions of Section 3(c) will not be applicable to the cases which were pending before the Court. No argument was advanced on this point by any of the parties. We make it clear that we have not expressed any opinion on this controversy."

This would not advance petitioner's submission, in as much as, nothing adverse to the pronouncement by the Division Bench in Nirmaljit's case (Supra) has been observed or held.

11. Learned counsel for the petitioner lastly cited the decision in M/s.New United Automobiles Vs. Cycle Equipment Pvt.Ltd. reported as 1997 (1) RCR 69 (DB). Learned counsel relied on certain observations made in the said case regarding the Rent Controller ceasing to have jurisdiction with respect to the tenanted premises with effect from 1.12.1988. It was observed that the tenanted premises stood excluded from the purview of the Act and the remedy of the landlord was to seek eviction under the general law since the rent of the premises was over Rs.3,500/- per month.

12. I am afraid the observations sought to be cited are out of context and do not advance the case of the petitioner. In the said case, before the Division Bench, an eviction petition had been instituted under Section 14(1)(j) and 14(1)(k) of the Act, prior to 1988. The rent of the premises was Rs.6,250/- per month. The landlord had also instituted a suit for possession, arrears of rent and mesne profits, after termination of the tenancy by a notice dated 11.1.1990. The appellant/tenant contended before the Court that the suit for possession was barred by Section 50 of the Act since two eviction petitions under the Act were pending. The Court held that the eviction proceedings emanated from a different cause of action, which arose prior to 1.12.1988. The suit for possession was filed after the Rent Controller ceased to have jurisdiction with respect to the premises with effect from 1.12.1988 and was, accordingly, competent. It is in this context that the observation regarding the Rent Controller ceasing to have jurisdiction were made.

The case is clearly distinguishable. In fact, in para 26 of the said judgement, the Court has observed as under:

"In the present case, but for the operation of Rent Act, the law contained in the Transfer of Property Act for seeking eviction/dispossession of tenant would have been available to the landlord. So long as the Rent Act was applicable Civil Court had no jurisdiction to entertain suit for eviction of tenants. But now when the Rent Act has been partially modified in its application the embargo under the Rent Act has disappeared, the remedy for seeking eviction under the general law is revived. In other words, eclipse on right of the landlord to seek eviction from Civil Court created by the Rent Act has disappeared. The question of retrospectivity of the Amending Act 1988 does not arise in the present case."

It would, therefore, be seen that the question of retrospectivity of the Act and its application did not arise in the said case. The Court held that the suit was competent, notwithstanding the pendency of the eviction petitions.

13. From the foregoing discussion, it would be seen that the submissions of the learned counsel for the petitioner are completely devoid of merit as Section 3(c) of the Act did not apply to the pending proceedings, as held in Nirmaljit's case (Supra). The impugned orders have been passed by Courts of competent jurisdiction and are legal and enforceable.

14. In view of the non-application of the Act to the pending proceedings, the plea of notice of termination not being in accordance with Section 106 of the Transfer of Property Act in respect of tenancies protected by statute, would also not arise. The submission of the petitioner that the lease was a manufacturing lease and the notice was not in accordance with Section 106 of the Transfer of Property Act, is devoid of merit.

15. This petition is absolutely devoid of merit and is a vexatious litigation instituted by the petitioner to somehow avoid payment of arrears of rent legitimately due from 1.8.1994, amounting to over Rs.8 lakhs. The petition is dismissed with costs of Rs.5,000/- to be paid to the Delhi Legal Services Authority by the petitioner.